Jorge L. Contreras has self-archived "Wait for It. . . Commons, Copyright and the Private (Re)Ordering of Scientific Publishing" in SSRN.
In this paper, Contreras critiques various open access strategies, and he proposes that publishers be granted one-year exclusive licenses as an alternative to these strategies.
| Transforming Scholarly Publishing through Open Access: A Bibliography | Digital Scholarship Publications Overview |
Nathan Rinne has self-archived "Teaching with Google Books: Research, Copyright, and Data Mining" in E-LIS.
Here's an excerpt:
Google's Google Books site is a rich resource that is probably underutilized by most educators. It has all kinds of potential for a) getting students into the research process in a way that they will enjoy (for example, they can see how a famous quote has been used/quoted, find out which books cite the journal article they are interested in, or check to see if a specific book covers a topic that they want to explore, etc.); b) teaching them about the deeper civic purpose and the evolving state of copyright law; and, c) exploring, with the help of Google Book's Ngram viewer, the promise and ethics surrounding the issue of data-mining and "non-consumptive" research, or research that is accomplished by "mining" books for data, as opposed to reading them.
David Robert Hansen has self-archived "Orphan Works: Mapping the Possible Solution Spaces" in SSRN.
Here's an excerpt:
This paper surveys a range of proposed orphan works solutions. The goal is to acquaint the reader with the wide variety of solution types, and to identify the positive and negative aspects of each. The paper discusses four general categories of proposed solutions to the orphan works problem: Remedy-limitation approaches, such as the one advocated in the 2006 U.S. Copyright office proposal, that are predicated on a user's good-faith, reasonable search for rights holders; administrative systems, such as the one adopted in Canada, that allow users to petition a centralized copyright board to license specific reuses of orphan works; access and reuse solutions that are tailored to rely upon the existing doctrine of fair use; and extended collective licensing schemes, which permit collective management organizations ('CMOs') to license the use of works that are not necessarily owned by CMO members, but that are representative of the CMO members' works.
| Scholarly Electronic Publishing Bibliography, Version 80 | Digital Scholarship |
The Authors Guild has filed a motion for partial judgment on the pleadings in the Authors Guild et al. v. Hathitrust et al. case.
Here's an excerpt from the associated "Memorandum of Law in Support of Plaintiffs' Motion for Partial Judgment on the Pleadings":
Defendants are wildly exceeding the special privileges Congress granted to libraries under Section 108 by systematically digitizing, reproducing, distributing and putting at risk millions of works through their mass book digitization program. Defendants' so-called orphan works program is similarly inimical to the Copyright Act, as it violates Section 108(h)'s explicit limitation of libraries' use of orphan works to the twenty year period preceding the end of their copyright term. Neither fair use under Section 107, nor any other statutory exception under the Copyright Act, can justify Defendants' systematic and concerted digitization, reproduction, distribution and other unauthorized uses of millions of copyright-protected library books. Accordingly, Plaintiffs urge the Court to grant their motion for partial judgment on the pleadings.
Read more about it at "GBS: Authors Guild Goes for an Early Knockout," "Guild Motion Asks for Quick Ruling on HathiTrust's Fair Use Defense," and "A Masterpiece of Misdirection."
The UCLA Library has released two videos on ARL's Code of Best Practices in Fair Use for Academic and Research Libraries. Peter Jaszi and Brandon Butler are the featured speakers.
| Scholarly Electronic Publishing Bibliography, Version 80 | Digital Scholarship |
The Association of Research Libraries has released A New Day for Website Archiving 2.0.
Here's an excerpt:
A central issue in the fair use analysis is whether the use is "transformative." Campbell v. Acuff-Rose, 510 U.S. 569, 579 (1994). In the website archiving context, the question is whether a library's reproduction and subsequent display of entire websites without material alteration is "transformative." The case law and legal opinions discussed below all indicate that library website archiving for the purpose of preservation and scholarship is transformative as that term is used by courts in the fair use context.
| Digital Scholarship's Digital/Print Books | Digital Scholarship |
Pamela Samuelson, Richard M. Sherman Distinguished Professor of Law and Information at the UC Berkeley School of Law, and other scholars have sent a letter ("Academic Author Objections to Plaintiff's Motion for Class Certification") to US District Court Judge Denny Chin about class certification issues in the Authors Guild v. Google Case.
Here's an excerpt:
We believe that our works of scholarship are more typical of the contents of research library collections than works of the three named plaintiffs in this case. Betty Miles is the author of numerous children's books. Jim Bouton is a former baseball pitcher who has written both fiction and nonfiction books based on his experiences as a baseball player. Joseph Goulden is a professional writer who has written a number of nonfiction books on a variety of subjects, including a book about "superlawyers." None of these three are academic authors. Their books are aimed at a popular, rather than an academic, audience. As professional writers, their motivations and interests in having their books published would understandably be different, and likely more commercial, than those of academic scholars. Hence, our concern is that these three do not share the academic interests that are typical of authors of books in research library collections. As we explain further below, the clearest indication that the named plaintiffs do not share the same priorities typical of academic authors is their insistence on pursuing this litigation.
William Patry, Senior Copyright Counsel at Google, has published How to Fix Copyright (publisher's description).
Here's an excerpt:
Our current laws are the result of "lobbynomics," the continual use of exaggerated (and often false) claims and crises as an excuse to pass laws that are unnecessary and many times harmful. . . . We will never fix our laws unless we clean house and start all over again, this time on a sound, empirical basis: Simply adding on to a failed structure will no longer work.
| Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship |
The Library Copyright Alliance has released "Golan v. Holder: A Farewell to Constitutional Challenges to Copyright Laws" by Jonathan Band.
Here's an excerpt:
The majority opinion in Golan closes the door on constitutional challenges to copyright statutes unless those statutes contain absolutely no time limits or directly undermine the idea/expression dichotomy or fair use. Justice Breyer failed to convince the Court that under the Constitution Congress had the authority to enact only utilitarian copyright statutes that incentivized the creation of new material. The majority opinion leaves Congress as the sole venue for fighting draconian copyright laws.
| Scholarly Electronic Publishing Bibliography, Version 80 | Digital Scholarship |
The Amsterdam University Press has released Sharing: Culture and the Economy in the Internet Age.
Here's an excerpt:
This book is about file sharing for creative, expressive or informative works in all media. More specifically, it is about file sharing between individuals and without profit motive. File sharing is the act of making a file available to other individuals by putting it on-line, by sending a copy, or by rendering it accessible through a file sharing software. We defend the view that sharing without direct or indirect monetary transaction—or "non-market" sharing—is legitimate. We also claim that sharing is socially and culturally valuable and will play a key role in the future of our culture and the creative economies. Furthermore, this book proposes a means to strengthen and exploit the synergy between file sharing and creativity, for the general benefit of society and the enrichment of the cultural economy.
The Association of Research Libraries, the Center for Social Media at the School of Communication of American University, and the Program on Information Justice and Intellectual Property at the Washington College of Law of American University have released the Code of Best Practices in Fair Use for Academic and Research Libraries.
Here's an excerpt:
This is a code of best practices in fair use devised specifically by and for the academic and research library community. It enhances the ability of librarians to rely on fair use by documenting the considered views of the library community about best practices in fair use, drawn from the actual practices and experience of the library community itself.
It identifies eight situations that represent the library community's current consensus about acceptable practices for the fair use of copyrighted materials and describes a carefully derived consensus within the library community about how those rights should apply in certain recurrent situations.
| Digital Scholarship's Digital/Print Books | Digital Scholarship |
David Robert Hansen has self-archived "Orphan Works: Definitional Issues" in SSRN. This is a white paper from the Berkeley Digital Library Copyright Project.
Here's an excerpt:
When discussing orphan works, two basic definitional questions arise: (1) exactly what is the "orphan works" problem?, and (2) what is the size of this problem? The answers to these two questions are central to understanding how proposed solutions work to remedy the situation. Though both questions have long been posed, the answer to the first (what is the "orphan works"; problem) can vary based on the type of work or the particular user, and the answer to the second (what is the size of the problem) remains difficult to state with precision. This paper explores both and identifies areas where further research is needed.
| Digital Scholarship's Digital Bibliographies | Digital Scholarship |
In a major defeat for public domain advocacy, the US Supreme Court has ruled against Lawrence Golan and others in Golan v. Holder.
Here is an excerpt from a synopsis of the case from the Legal Information Institute:
Congress enacted Section 514 of the Uruguay Round Agreements Act in order to comply with the international copyright standards of the Berne Convention for the Protection of Literary and Artistic Works. Section 514 restores copyright protection to foreign works currently found in the public domain. Lawrence Golan and other performers, educators, and motion picture distributors brought this suit challenging Section 514, arguing that Congress's removal of works from the public domain exceeded its Copyright Clause powers. Golan also argues that Section 514 violates the First Amendment because the law does not serve any important government interests. Attorney General Holder counters that the Copyright Clause does not restrict Congress's authority to remove works from the public domain. He further argues that Section 514 does not violate the First Amendment because the government has a substantial interest in complying with the Berne Convention and protecting American works abroad.
Here's an excerpt from the ruling:
Congress determined that U. S. interests were best served by our full participation in the dominant system of international copyright protection. Those interests include ensuring exemplary compliance with our international obligations, securing greater protection for U. S. authors abroad, and remedying unequal treatment of foreign authors. The judgment §514 expresses lies well within the ken of the political branches. It is our obligation, of course, to determine whether the action Congress took, wise or not, encounters any constitutional shoal. For the reasons stated, we are satisfied it does not. The judgment of the Court of Appeals for the Tenth Circuit is therefore Affirmed.
In a lengthy dissent, Justice Stephen Breyer said:
The fact that, by withdrawing material from the public domain, the statute inhibits an important preexisting flow of information is sufficient, when combined with the other features of the statute that I have discussed, to convince me that the Copyright Clause, interpreted in the light of the First Amendment, does not authorize Congress to enact this statute.
Justice Samuel Alito also dissented.
The Creative Commons has released three new documents about the use of its licenses for data: "Data," "Data and CC Licenses," and "CC0 Use for Data."
Here's an excerpt from the announcement by Sarah Hinchliff Pearson:
We have done a lot of thinking about data in the past year. As a result, we have recently published a set of detailed FAQs designed to help explain how CC licenses work with data and databases.
These FAQs are intended to:
- alert CC licensors that some uses of their data and databases may not trigger the license conditions,
- reiterate to licensees that CC licenses do not restrict them from doing anything they are otherwise permitted to do under the law, and
- clear up confusion about how the version 3.0 CC licenses treat sui generis database rights.
| Digital Scholarship's Weblogs and Tweets | Digital Scholarship |
HathiTrust has responded to the plaintiffs' First Amended Complaint in the Authors Guild, Inc. et al. v. HathiTrust et al. copyright case.
Read more about it at "HathiTrust Answers Authors Guild Lawsuit; Trial Schedule Set" and "Authors Guild v. HathiTrust et al. Resources."
| Digital Scholarship's Digital Bibliographies | Digital Scholarship |
Senator Ron Wyden and others have released a draft proposal, "Fighting the Unauthorized Trade of Digital Goods while Protecting Internet Security, Commerce and Speech," that presents an alternative to the Stop Online Piracy Act (SOPA) and the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (PIPA).
Here's an excerpt:
We found that using trade laws to address the flow of infringing digital goods into the United States makes it possible to avoid many of the pitfalls that would arise from other legislative proposals currently being advanced to combat online infringement. Namely by putting the regulatory power in the hands of the International Trade Commission—versus a diversity of magistrate judges not versed in Internet and trade policy—will ensure a transparent process in which import policy is fairly and consistently applied and all interests are taken into account. When infringement is addressed only from a narrow judicial perspective, important issues pertaining to cybersecurity and the promotion of online innovation, commerce and speech get neglected. By approaching digital good infringement as a matter of regulating international commerce, we are able to take all of these factors into account.
Read more about it at "SOPA on the Ropes? Bipartisan Alternative to 'Net Censorship Emerges."
| Digital Scholarship's Digital Bibliographies | Digital Scholarship |
College & Research Libraries has released a preprint of "Copyright Policy and Practice in Electronic Reserves among ARL Libraries."
Here's an excerpt:
This paper presents the results of a survey of 110 ARL institutions regarding their copyright policies for providing electronic reserves. It compiles descriptive statistics on library practice as well as coding responses to reveal trends and shared practices. Finally, it presents conclusions about policy-making, decision-making and risk aversion in ARL institutions.
| Digital Scholarship's Digital Bibliographies | Digital Scholarship |
The World Intellectual Property Organization's Standing Committee on Copyright and Related Rights has released the Draft Compilation on Limitations and Exceptions for Libraries and Archives.
Here's an excerpt from the "SCCR Releases Draft Compilation on Limitations and Exceptions for Libraries and Archives":
The Draft Compilation is an extensive document, which the library delegation warmly welcomed. Its 45 pages contain comments and proposals by Member States on each of the 10 clusters of limitations and exceptions for libraries and archives. It is extremely encouraging that Ecuador has now tabled additional language for each cluster that mirrors the proposals contained in IFLA's TLIB 4.1 document. Consequently, IFLA believes the Draft Compilation is an extremely valuable document going forward.
| New: Scholarly Electronic Publishing Bibliography, Version 80 | Digital Scholarship |
The World Intellectual Property Organization has released Scoping Study on Copyright and Related Rights and the Public Domain.
Here's an excerpt from the announcement:
The scoping study includes an illustrative comparison of national legislations that directly, or indirectly, define the public domain; and a survey of initiatives and tools, which may affect access, use, identification and location of public domain material.
The American Assembly has released Copyright Infringement and Enforcement in the US.
Here's an excerpt:
The note excerpts a forthcoming survey-based study called Copy Culture in the U.S. and Germany. Drawing on results from the U.S. portion of the survey, it explores what Americans do with digital media, what they want to do, and how they reconcile their attitudes and values with different policies and proposals to enforce copyright online.
| Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship |
Booz & Company has released The Impact of U.S. Internet Copyright Regulations on Early-Stage Investment: A Quantitative Study
Here's an excerpt from the press release:
A large majority of the angel investors and venture capitalists who took part in a Booz & Company study say they will not put their money in digital content intermediaries (DCIs) if governments pass tough new rules allowing websites to be sued or fined for pirated digital content posted by users. (DCIs are the companies that provide search, hosting, and distribution services for digital content such as YouTube, Facebook, SoundCloud, eBay, and thousands of others.) More than 70 percent of angel investors reported they would be deterred from investing if anti-piracy regulations against "user uploaded" websites were increased.
| New: Scholarly Electronic Publishing Bibliography, Version 80 | Digital Scholarship |
"The Digital Public Domain: Relevance and Regulation," which Leonhard Dobusch presented at 1st Berlin Symposium on Internet and Society, is now available.
Here's an excerpt:
After clarifying the notion and different areas of the (digital) "public domain" the paper engages in discussing literature on its relevance for society in general and economic innovation in particular. The effectiveness of the utilization of these abstract potentials however depends on the respective public domain regulation. In this context, the paper distinguishes different regulatory modes and arenas in both copyright and patent law, thereby focusing private regulatory initiatives such as Creative Commons or Biological Open Source (BiOS). In the last section, the paper presents open research questions and makes some preliminary suggestions for potential research strategies.
| Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship |
The Library Copyright Alliance has sent a letter to Chairman Lamar Smith and Ranking Member John Conyers of the House Committee on the Judiciary about the Stop Online Piracy Act.
Here's an excerpt:
There are three pending copyright infringement lawsuits against universities and their libraries relating to their use of digital technology One of these cases, AIME v. UCLA, concerns the streaming of films to students as part of their course assignments. These lawsuits reflect a growing tension between rights holders and libraries, and some rights holders' increasingly belligerent enforcement mentality. Moreover, legislation such as SOPA and the PRO-IP Act passed in the 110th Congress, and the activities of the Intellectual Property Enforcement Coordinator (a position created by the PRO-IP Act), encourage federal prosecutors to enforce copyrights law more aggressively.
In this environment, the criminal prosecution of a library for copyright infringement is no longer beyond the realm of possibility. For this reason, we strongly oppose the amendments described above, which would increase the exposure of libraries to prosecution. The broadening of the definition of willful infringement could result in a criminal prosecution if an Assistant U.S. Attorney believes that a library's assertion of fair use or one of the Copyright Act's other privileges is unreasonable. This risk is compounded with streaming, which SOPA would subject to felony penalties even if conducted without purpose of commercial advantage or private financial gain.
| New: Scholarly Electronic Publishing Bibliography, Version 80 | Digital Scholarship |
The U.S. Office of the Register of Copyrights has released Legal Issues in Mass Digitization: A Preliminary Analysis and Discussion Document .
Here's the announcement:
The Copyright Office has published a Preliminary Analysis and Discussion Document that addresses the issues raised by the intersection between copyright law and the mass digitization of books. The purpose of the Analysis is to facilitate further discussions among the affected parties and the public discussions that may encompass a number of possible approaches, including voluntary initiatives, legislative options, or both. The Analysis also identifies questions to consider in determining an appropriate policy for the mass digitization of books.
Public discourse on mass digitization is particularly timely. On March 22, 2011, the U.S. District Court for the Southern District of New York rejected a proposed settlement in the copyright infringement litigation regarding Google's mass book digitization project. The court found that the settlement would have redefined the relationship between copyright law and new technology, and it would have encroached upon Congress's ability to set copyright policy with respect to orphan works. Since then, a group of authors has filed a lawsuit against five university libraries that participated in Google's mass digitization project. These developments have sparked a public debate on the risks and opportunities that mass book digitization may create for authors, publishers, libraries, technology companies, and the general public. The Office's Analysis will serve as a basis for further policy discussions on this issue.
Representative Lamar Smith and others have introduced the H.R. 3261, the Stop Online Piracy Act in the U.S. House of Representatives.
Here's an excerpt from the press release:
A bipartisan group in the House today introduced legislation that expands protections for America's intellectual property (IP) and combats the illegal distribution of counterfeit goods via rogue websites. The Stop Online Piracy Act (H.R. 3261) allows the Attorney General to seek injunctions against foreign websites that steal and sell American innovations and products. The bill increases criminal penalties for individuals who traffic in counterfeit medicine and military goods, which put innocent civilians and American soldiers at risk. And it improves coordination between IP enforcement agencies in the U.S.
Gigi B. Sohn, president and co-founder of Public Knowledge issued a statement about the bill. Here's an excerpt:
The new House legislation (HR 3261) is an unwarranted expansion of government power to protect one special interest. The bill would overturn the long-accepted principles and practices of the Digital Millennium Copyright Act notice and takedown process in favor of a one-sided enforcement mechanism that is far more broad than existing law while not attempting to protect the rights of anyone accused of copyright infringement.
In addition, anyone who writes about, or links to, a site suspected of infringement could also become a target of government action. The bill also features the now well-known dangers to the engineering of the Internet domain-name system (DNS), endangering Internet security while requiring Internet Service Providers and search engines to take on vast new responsibilities to block access to suspected sites.
Read more about it at "House Version of Rogue Websites Bill Adds DMCA Bypass, Penalties for DNS Workarounds."
| Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship |
